THE FLORIDA SENATE

SPECIAL MASTER ON CLAIM BILLS

Location

402 Senate Office Building

Mailing Address

404 South Monroe Street Tallahassee, Florida 32399-1100

(850) 487-5237

DATE COMM ACTION

2/1/11 SM Fav/1 amendment

February 1, 2011

The Honorable Mike Haridopolos President, The Florida Senate Suite 409, The Capitol Tallahassee, Florida 32399-1100

Re: SB 34 (2011) – Senator Charlie Dean

HB 185 (2011) – Representative Debbie Mayfield Relief of Angela Isham

SPECIAL MASTER’S FINAL REPORT

THIS IS AN EXCESS JUDGMENT CLAIM FOR $600,000 FROM LOCAL FUNDS BASED ON A JURY AWARD FOR ANGELA ISHAM AND THEN A SETTLEMENT AGREEMENT WITH THE CITY OF FT. LAUDERDALE TO COMPENSATE CLAIMANT FOR THE DEATH OF HER HUSBAND, DAVID ISHAM, IN A MOTOR VEHICLE CRASH THAT OCCURRED DURING A POLICE PURSUIT.

FINDINGS OF FACT: In the late afternoon of November 15, 2001, three Ft.

Lauderdale narcotic detectives were patrolling an area of the City where drug transactions frequently occur. The detectives were in an unmarked car driven by Detective Carl Hannold. They were wearing black t-shirts with the word “POLICE” printed in large letters across the front. Although the detectives were in an unmarked vehicle, many people in the neighborhood saw the vehicle frequently and knew it was a police car.

The detectives observed a parked BMW with several persons standing around it. When the driver of the BMW saw the police vehicle, he immediately sped off with tires squealing. No drug-related activity was seen by the

detectives.

The detectives turned around to follow the BMW. The driver of the BMW took evasive maneuvers on the neighborhood streets and the detectives lost sight of the BMW for several minutes. The detectives circled back and spotted the BMW again. Detective Hannold pulled behind the BMW, which made a right turn at the next intersection without stopping at the stop sign. Detective Hannold followed. The detectives got behind the BMW and turned on their blue light inside the police car. The BMW accelerated away and ran the next stop sign at the intersection with a busy four-lane road. The BMW collided with a pickup truck driven by 42-year-old David Isham. Mr. Isham died at the scene from his injuries.

The driver of the BMW was identified as Jimmie Jean Charles, 20 years old. Charles was injured in the collision and was hospitalized for a short time. The BMW he was driving had been stolen. Charles was tried and convicted of vehicular homicide. He was sentenced to 15 years in prison.

The central dispute in this case was whether Detective Hannold was engaged in a pursuit of the BMW. The Ft. Lauderdale Police Department’s policy manual defines a “pursuit” as:

The operation or use of a police vehicle so as to pursue and attempt to apprehend a subject operating a motor vehicle who willfully or knowingly uses either high speed, illegal, or evasive driving tactics in an effort to avoid detention, apprehension, or arrest.

The policy manual prohibits pursuits in unmarked police cars “except when it is necessary to apprehend an individual who has caused serious bodily harm or death to any person.” Pursuit for a traffic violation would be contrary to the policy. The pursuit policy also states that “accountability cannot be circumvented by verbally disguising what is actually a pursuit by using terms such as monitoring, tracking, shadowing, or following.”

The City’s pursuit policy is consistent with the policies of many police departments throughout the United States, which have been revised in recent years in response to the

injuries, deaths, and associated liability that often result from high-speed police pursuits. Detective Hannold said he was familiar with the pursuit policy and that he was not engaged in a pursuit. He claims that he followed the BMW because it is common for drug dealers to speed away and then “ditch” their cars and run away on foot. Hannold said that when the BMW sped away again as the blue light was activated in the unmarked police car, he did not accelerate to overtake the BMW, but, instead, came to a stop “to make it clear [to the driver of the BMW] that we were in no manner trying to catch up with him.” The City claims that Detective Hannold’s actions did not constitute a pursuit because he was not attempting to “apprehend” the BMW driver; he was merely attempting a traffic stop which he had the right to do when he saw the BMW driver run a stop sign.

The other two detectives supported Detective Hannold’s account. The three detectives prepared individual written reports just after the incident, but they got together beforehand and agreed on what to say in their reports. Critical portions of the reports have identical wording. In their trial depositions and testimony, Hannold and the other two detectives were evasive and, in some instances, their answers lacked credibility.

At the scene of the collision, there was a large gathering of people from the neighborhood and some of them were telling media representatives and police investigators that the police were pursuing the BMW in a high-speed chase. The Police Department obtained several witness statements. One teenage boy said the police car was a block behind the BMW when the collision occurred, but the other witnesses, including two adult women closer to the scene of the collision, testified that the unmarked car was close behind the BMW and that both cars were going fast. One woman said that when the police car turned on its blue light, the BMW immediately accelerated away and the police car also “gunned it.” The speed limit on the narrow residential street was 25 MPH.

A traffic accident reconstruction conducted by the Police Department estimated that the BMW was traveling about 54 MPH when it struck David Isham’s truck. At trial, the City presented another accident reconstruction that concluded the BMW was going between 61 and 70 MPH. The City

argues that, since Detective Hannold’s vehicle stopped without leaving skid marks, it could not have been traveling as fast as the BMW, nor could it have been very close behind the BMW.

Based on the extensive witness testimony and other evidence and argument presented by the parties, and taking into account the credibility of the witnesses, the more persuasive evidence supports the following essential facts:

At their first encounter, Detective Hannold had reason to believe that the BMW driver was fleeing to evade apprehension.

At their second encounter, when the BMW sped away through a stop sign, it should have been clear to Detective Hannold that the BMW driver was fleeing to evade apprehension.

It was reasonable for the BMW driver to believe he was being pursued.

The BMW driver sped through the next stop sign at the four-lane road to evade apprehension and it is unlikely that he would have done so if the police car had not continued to follow him.

Whether Detective Hannold was driving as fast as the BMW and whether he was close behind the BMW in the two blocks leading to the intersection where the collision occurred are not controlling facts for determining whether Detective Hannold was engaged in a pursuit. The definition of a pursuit is not restricted to high speeds or small distances between the vehicles.

Even if, as Detective Hannold claims, he stopped his vehicle immediately and turned off the flashing light when the BMW sped away the last time, it only means that he broke off his pursuit of the BMW, but the pursuit had commenced earlier. Detective Hannold might have terminated the pursuit, but it was too late to avoid the tragedy that he had set in motion.

The action of Detective Hannold, the reaction of the BMW

driver, and the crash that killed David Isham, fall squarely within the predictable scenarios that the City’s pursuit policy was designed to avoid. Pursuing a subject who is trying to avoid apprehension can cause the subject to react by driving dangerously so as to cause injury or death. Therefore, a pursuit is prohibited if the only infraction known to the police officer is a traffic violation.

LITIGATION HISTORY: In 2003, a lawsuit was filed in the circuit court for Broward

County by Angela Isham on behalf of herself and the estate of David Isham, against the City of Ft. Lauderdale. Prior to trial, the parties stipulated that the economic damages were

$1,270,438.50 In February 2008, after a five-day trial, the jury found that the City and the BMW driver were each 50 percent liable for Mr. Isham’s death. The jury determined that Angela Isham’s damages for the loss of her husband’s companionship and for pain and suffering were $600,000. Based upon the division of damages under the version of

s. 768.81, Florida Statutes, then in effect, the City’s liability was $1,435,219.25. The City paid the sovereign immunity limit of $200,000, leaving a balance of $1,235,219.25, which is the amount the Claimant originally sought through this claim bill.

However, at the time of the preparation of this report, the parties informed the Special Master that they had reached a settlement of their disputes regarding this claim, and that they would seek to amend SB 34 to reflect the terms of their settlement agreement. Under the terms of the Partial Satisfaction of Judgment and Settlement Agreement, the City would pay $200,000 within 30 days of the effective date of a claim bill that approves the settlement agreement, then

$100,000 per year for three years, and then $50,000 per year for two years after that, for a total of $600,000.

CONCLUSIONS OF LAW: Detective Hannold had a duty to comply with the Police

Department’s policies regarding pursuits and to operate his vehicle at all times with consideration for the safety of pedestrians and other drivers. It is foreseeable that injuries to motorists and pedestrians can occur during a police pursuit. Detective Hannold breached his duty and the breach was the proximate cause of the death of David Isham. The City of Ft. Lauderdale is vicariously liable for the negligence of Detective Hannold because he was acting within the course and scope of his employment at the time of

the incident.

The jury’s allocation of 50 percent liability to the City is a reasonable allocation and should not be disturbed.

A claim in the amount of $600,000, paid in installments as described above, is fair and reasonable under the circumstances.

ATTORNEYS FEES: Claimant’s attorneys have agreed to limit their fees to 25

percent of any amount awarded by the Legislature in compliance with s. 768.28(8), Florida Statutes.

RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate

Bill 34 (2011) be reported FAVORABLY, as amended to incorporate the parties' settlement agreement.

Respectfully submitted,

cc: Senator Charlie Dean Representative Debbie Mayfield

Bram D. E. Canter Senate Special Master

R. Philip Twogood, Secretary of the Senate Counsel of Record

Attachment

Ì8932929Î893292

LEGISLATIVE ACTION

Senate .

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House

The Special Master on Claim Bills recommended the following:

1 Senate Amendment (with title amendment)

2

1. Delete lines 50 - 56

2. and insert:

3. Section 2. The City of Ft. Lauderdale is authorized and

4. directed to appropriate from funds of the City not otherwise

5. appropriated and to draw warrants payable to Angela Isham,

6. individually, and as co-personal representative of the estate of

7. David Isham, deceased, in the amounts and in the timeframe

8. contained in the Partial Satisfaction and Settlement Agreement

9. between the City of Ft. Lauderdale and Angela Isham, said amount

10. totaling $600,000 above the statutory amount already paid.

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2/20/2011 3:00:37 PM 600-01747-11

Ì8932929Î893292

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14 ================= T I T L E A M E N D M E N T ================

1. And the title is amended as follows:

2. Delete lines 38 - 44

3. and insert:

4. WHEREAS, the City of Ft. Lauderdale has sufficient funds in

5. its Risk Management Fund available to pay this claim, NOW,

6. THEREFORE,

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2/20/2011 3:00:37 PM 600-01747-11

Docket for Case No: 10-009578CB

Orders for Case No: 10-009578CB